Mining deal in for fight

Industry officials convinced a federal judge on Thursday to make lawyers for environmental groups and federal regulatory agencies show why the proposed plan is in the public interest.

Chief U.S. District Judge Charles Haden also said that he will give coal industry groups and the state Division of Environmental Protection a chance to argue against the plan.

Bill Raney, president of the West Virginia Coal Association, said coal industry trade associations will fight the federal plan in court.

"We don't do anything non-vigorously," Raney said. "And every time you read this thing, you get a little more concerned."

The legal wrangling could push back any final decision on the matter for two months or more.

Haden met privately Thursday afternoon with parties to a federal court lawsuit, filed by the West Virginia Highlands Conservancy, to discuss a tentative settlement of part of the case.

According to lawyers who attended the session, Haden questioned the meaning of the wording of the settlement, and asked about its impact on the mining industry.

In a news release, DEP spokesman Andy Gallagher quoted Haden as asking the conservancy and federal lawyers to "file a paper saying what the agreement means, why it is fair, and why it is in the public interest."

Haden gave the conservancy and federal lawyers 21 days to file their explanation. Industry and DEP responses are due 14 days after that, and a final response to those is due a week later.

The conservancy negotiated the settlement privately with the U.S. Department of Justice, which represented federal agencies in the lawsuit. Michael McCabe, regional U.S. Environmental Protection Agency administrator, pushed for the deal.

Two weeks ago, the conservancy filed a motion to dismiss its allegations that the U.S. Army Corps of Engineers has improperly authorized mountaintop removal valley fills under the federal Clean Water Act. Conservancy lawyer Joe Lovett agreed to seek the dismissal after the Corps and other federal agencies came up with a plan to perform lengthy environmental studies before approving new mountaintop removal mining permits.

Under an interim federal plan, most new mountaintop removal permits now in the regulatory pipeline would require two-year environmental studies before they are approved.

Within the next two years, federal officials should complete a separate, more detailed environmental study of mountaintop removal and propose new regulations based on its findings.

Raney said the arrangement could cost the state up to 1,000 jobs at companies that have mountaintop removal permits pending.

"There are permits pending that have short triggers or have been in the pipeline for 24 months or more," Raney said. "The industry just can't operate this way. We depend on the timely issuance of permits."

Privately, officials from the DEP Office of Mining and Reclamation have also complained about the lawsuit settlement.

The settlement does not dismiss separate allegations that DEP has improperly permitted mountaintop removal mines that violate stream buffer zone rules and post-mining development requirements for flattened mine sites.

Roger Wolfe, a lawyer for three Arch Coal Inc. subsidiaries, said his clients have not decided whether they will fight the settlement. Wolfe said he wants to see what the conservancy and the government say the settlement means before a decision is made.

"Who can tell you, from that document, what you need to do to get a permit?" Wolfe said. "It just doesn't say.

"Just what does it mean and what effect will it have on the industry?" he said. "It's just a very amorphous document that doesn't address any of these things."

The federal plan itself may not need Haden's approval. But the motion to dismiss the allegations against the Corps - a condition of the settlement containing the plan - must be authorized by the judge.

Cindy Rank, mining chairwoman of the conservancy, said the settlement is a reasonable compromise that the coal industry should accept.

"I knew they wouldn't like it, but it's impressive how much they don't like it," Rank said.

"I don't know what this means in the long run," she said. "But as much as we had trouble accepting it, it's a reasonable compromise. To think that even such a reasonable resolution of these questions would be challenged is a little outrageous."